Understanding the 12-Step DRE Protocol in Drugged Driving Cases

If you’ve been arrested for DWI because of drugs or sometimes it is also called driving under the influence of drugs (DUID) in Minnesota, you may encounter the Drug Recognition Expert (DRE) evaluation. This 12-step process is used to assess drivers suspected of being impaired by drugs other than alcohol. While a DRE evaluation is a detailed and methodical process, understanding its procedures can be crucial in defending your case. If you are facing a DWI because of drugs here in Minnesota, make sure you consult with an experienced Minnesota DWI Defense Attorney.

“Unlike alcohol, if you are arrested because of marijuana and a DWI, there is not standard amount of marijuana that established intoxication.”

At Jack Rice Defense, we believe that the right defense starts with understanding the science behind the process. In this article, we will walk you through the 12 steps of the DRE protocol and discuss how these steps can be challenged in your defense.

1. Breath Alcohol Test

Before a DRE evaluation begins, the arresting officer will typically administer a breath alcohol test to determine whether alcohol impairment is a factor. The Breath Alcohol Concentration (BrAC) results will guide the officer in deciding whether the suspect's impairment is due to alcohol or another substance. If the BrAC result does not explain the suspect’s impairment, the officer will request a DRE evaluation.

Defense Insight: If the BrAC result is borderline or questionable, this may raise doubts about the credibility of the DRE assessment. We can challenge how the breath test was administered, or argue that the results may not be consistent with your impairment.

2. Interview of the Arresting Officer

In the second step, the DRE will discuss the circumstances of the arrest with the officer. This includes asking about the suspect’s behavior, appearance, and driving performance. The goal is to gather information to help the DRE identify any signs of impairment that may suggest drug use.

Defense Insight: Officers are often subjective in their descriptions of a suspect’s behavior. A skilled DWI defense attorney can cast doubt on these subjective observations, questioning whether the officer’s perceptions were influenced by bias or insufficient training.

3. Preliminary Examination and First Pulse

The DRE conducts a preliminary examination to rule out any medical conditions or injuries that might explain the impairment. The DRE will also assess the suspect's general attitude, coordination, speech, breath, and facial features. During this exam, the DRE checks for horizontal gaze nystagmus (HGN)—a condition where the eyes involuntarily jerk when tracking an object—and measures the pulse for the first time.

Defense Insight: HGN is not always a reliable indicator of impairment, and medical conditions, fatigue, or anxiety can cause similar symptoms. We can challenge whether the signs observed by the DRE were truly drug-related.

4. Eye Examination

This step involves checking for both horizontal and vertical gaze nystagmus (VGN), as well as evaluating the suspect’s ability to converge their eyes when focusing on a near object. These eye signs can indicate the use of certain drugs, particularly central nervous system depressants, stimulants, and dissociative anesthetics.

Defense Insight: Like the preliminary pulse check, eye examinations can be misinterpreted or influenced by other factors. The DRE’s findings in this step may not be conclusive evidence of drug impairment.

5. Divided Attention Psychophysical Tests

The DRE administers several tests that require the suspect to divide their attention between multiple tasks. These tests include the Modified Romberg Balance, Walk and Turn, One Leg Stand, and Finger to Nose. These exercises are designed to assess coordination, balance, and cognitive function.

Defense Insight: These tests are often challenging for individuals who are nervous, tired, or uncoordinated due to factors unrelated to drug use. A skilled defense attorney can argue that poor performance on these tests was due to conditions other than drug impairment.

6. Vital Signs and Second Pulse

The DRE measures the suspect’s blood pressure, temperature, and pulse to further assess physical condition. A change in these vital signs may suggest drug use, although other factors such as anxiety or physical exertion could cause similar changes.

Defense Insight: Vital sign measurements alone cannot definitively prove impairment. We can challenge whether the DRE correctly interpreted changes in your vital signs or whether they were influenced by other non-drug-related factors.

7. Dark Room Examinations

In this step, the DRE uses a pupilometer to assess the suspect’s pupil size under different lighting conditions. Abnormalities in pupil response—such as dilated or constricted pupils—may suggest the use of certain drugs.

Defense Insight: Pupil size can be influenced by various factors, including lighting, lighting exposure, and medical conditions. A defense attorney can question the validity of this observation if these factors were not adequately considered.

8. Examination for Muscle Tone

The DRE assesses whether the suspect’s muscles are rigid or excessively relaxed, which may indicate the use of certain drugs. For example, rigid muscles could suggest the use of central nervous system stimulants, while excessively relaxed muscles might suggest the use of depressants.

Defense Insight: Many factors can affect muscle tone, including stress, fatigue, or pre-existing medical conditions. If the DRE failed to account for these possibilities, we can challenge the reliability of the muscle tone assessment.

9. Check for Injection Sites and Third Pulse

At this point, the DRE will look for injection sites that might indicate recent drug use, particularly intravenous drug use. They will also take the suspect’s pulse for the final time to observe any further changes.

Defense Insight: If no injection sites are present or if the injection sites observed are not consistent with drug use, this step can be called into question. We can argue that the absence of clear evidence undermines the DRE’s findings.

10. Subject’s Statements and Other Observations

The DRE will typically read the suspect their Miranda rights and then ask questions about drug use. The suspect’s responses may provide further clues about impairment. However, a suspect’s responses to these questions can be influenced by anxiety or misunderstanding.

Defense Insight: Any statements made during this phase can be challenged, especially if the suspect was not fully informed of their rights or if the questioning was leading.

11. Analysis and Opinions of the Evaluator

After all steps are completed, the DRE evaluates the results and forms an opinion about whether the suspect is impaired and which category of drugs might be responsible for the impairment. This opinion is based on all the data gathered during the evaluation process.

Defense Insight: A DRE’s opinion is subjective and can be influenced by bias or incomplete data. An experienced attorney can challenge the DRE’s conclusions, especially if the evidence does not fully support their analysis.

12. Toxicological Examination

Finally, toxicological testing is used to confirm the presence of drugs in the suspect’s system. This can provide objective evidence to support or refute the DRE’s findings.

Defense Insight: The results of toxicological testing are critical in assessing impairment. If the tests do not show the expected levels of drugs, or if they suggest alternative explanations for the suspect’s condition, this can be used to weaken the DRE’s conclusions.

“If you are facing a DWI because of THC, contact Jack Rice Defense for a free confidential consultation.”

Why It’s Important to Work with an Experienced DWI Defense Lawyer

The DRE protocol is highly detailed and technical. If you are facing a drugged driving charge in Minnesota, the accuracy of each step in the evaluation is critical. An experienced Minnesota DWI Defense attorney can identify potential flaws in the DRE process and challenge the evidence presented against you.

At Jack Rice Defense, we know how to evaluate the DRE process and expose weaknesses in the prosecution’s case. We provide a free confidential consultation to discuss your case and help you understand your legal options.

If you're facing a DWI or DUID charge related to marijuana, prescription drugs, or other substances, don’t leave your future to chance. Contact Jack Rice Defense at 651-447-7650 or 612-227-1339 today. When your life is on the line, make sure Jack Rice Defense is by your side.